R v Cooper [2001] NSWSC 769

New South Wales Supreme Court

CITATION : R v Cooper [2001] NSWSC 769 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70033/01 HEARING DATE(S) : 31 August 2001 JUDGMENT DATE : 31 August 2001

Regina PARTIES : v Maryanne Jane COOPER JUDGMENT OF : Simpson J at 1

COUNSEL : Crown - P Dare Offender - P Maiden SOLICITORS : S E O'Connor T Dalla, Campbell Paton & Taylor CATCHWORDS : Criminal law - sentence - infanticide - post natal depression LEGISLATION CITED : Crimes Act 1900 DECISION : Offender to enter into a good behaviour bond for a period of four years subject to the following conditions; (a) to appear before this court if called upon to do so at any time during the term of the bond, and; (b)(i) to be of good behaviour for the term of the bond; (ii) to inform the registrar of this court of any change of residential address and; (c) that by Tuesday 4 September to report to an officer of the Probation and Parol Service at Orange NSW; (d) to accept the supervision and directions of the officers of the Progation and Parole Service.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

31 August 2001

70033/01 REGINA v Maryanne Jane COOPER SENTENCE HER HONOUR : 1 Maryanne Jane Cooper appears for sentence following her plea of guilty to an indictment charging her with the offence shortly known as infanticide. Both the Crown and Ms Cooper's legal representatives have helpfully provided to me, in Chambers, the evidentiary and other material relevant to sentence. I have read this material, and, having considered the oral submissions put to me this morning, I am in a position to proceed immediately to sentence. 2 The offence of infanticide is created by s 22A of the Crimes Act 1900 which was inserted into the Act in 1951. That section provides that, where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child, or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the offence would otherwise have amounted to murder, she is to be found guilty of the offence of infanticide, and is liable to be punished as though guilty of manslaughter. 3 All conditions necessary for the application of the section have been met. Ms Cooper acknowledges that, on 24 June 2000, by a wilful act, she caused the death of her daughter Chloe, then aged seven months, and that, but for s 22A, that act would have amounted to murder. The Crown, for its part, accepts that the balance of Ms Cooper's mind was disturbed by reason of her not having fully recovered from the birth of her child. It is therefore appropriate to sentence Ms Cooper as though she were guilty of manslaughter, not murder. By s 24 of the Crimes Act the maximum penalty applicable to the offence of manslaughter is imprisonment for twenty-five years. 4 I hasten to add that the Crown has very fairly and properly conceded, and indeed urged, that a custodial penalty is not called for in the present case. For reasons I shall shortly give, I accept that concession as properly made. I do not intend to sentence Ms Cooper to a term of imprisonment. 5 It is, however, incumbent upon the court fully to explain the reasons that this concession was made and accepted. Where the court takes an unusual course such as imposing a non-custodial sentence where the death of a human being has been caused the community is entitled to a full explanation. What must never be lost sight of is that, at the heart of this case, is the loss of life of a seven month old child. The loss of human life is something to be treated with utmost gravity. Where the life lost is that of a baby, completely defenceless, and at the hand of her mother, from whom she could ordinarily expect nurture and care, the obligation on the courts to signify its respect for the sanctity of life and to punish those who wrongfully take it is so much greater. I am fully conscious of previous statements of this court and other courts emphasising the importance of the recognition of the gravity of offences of homicide. 6 Equally, of course, I am conscious that s 22A was inserted into the Act as long ago as 1951 in order to recognise a perceived phenomenon relating to the effects, in some instances, of childbirth. The legislature then identified infanticide as a form of homicide having particular characteristics and a particular genesis which therefore justifies, in an appropriate case, a different approach to sentencing. This is an appropriate case. That the maximum penalty applicable is the maximum penalty applicable to an offence of manslaughter in no way negates the recognition given to the particular circumstances that go to make up the offence of infanticide. 7 I turn now to the facts. It seems to me that the picture will be presented most clearly if I approach the matter chronologically, beginning with the birth of the offender. For this purpose, the subjective factors and the offence itself may be dealt with as part of a single history. The facts I am about to recount are drawn from a variety of statements (of Ms Cooper and others) and psychiatric or psychological reports, the authors of which have taken detailed and consistent histories from Ms Cooper. There is no suggestion that any of the histories were in any way inaccurate or fabricated, or slanted in order to achieve a more favourable result. 8 Ms Cooper was born in Parramatta on 25 October 1978. Her parents separated before her birth. Her childhood was unhappy, marked by abuse and physical violence. Her mother entered another relationship, and a number of half siblings were born, some of whom, it seems, later engaged in abuse of Ms Cooper. At the age of twelve she was made a state ward and lived for some time either in state run institutions or in foster homes. 9 From about the age of fifteen she experienced auditory hallucinations, these being in the form of voices. She made no report of these to anybody. In about 1995, when she was seventeen, she went to live with her mother in Orange, in NSW, and this was not always harmonious. In that year she took an overdose of Panadol; in the following year she took an overdose of aspirin; later, in 1999, she took an overdose of Prozac, which had, by then, been prescribed for a depressive illness with which she had been diagnosed. There is also a suggestion in the materials that she had, on one occasion, cut her wrists. At times, Ms Cooper has denied that any of these events represented an attempt at suicide, but it is difficult to see them as anything else. 10 In about 1998 Ms Cooper commenced a relationship with the father of Chloe, but this relationship was also abusive. On 23 April 1998 Ms Cooper's first child, Samantha, was born of this relationship. Shortly after that Ms Cooper was diagnosed as suffering from depression. She entertained thoughts of killing Samantha but fortunately was able to restrain herself. She was again diagnosed with depression, and it was on this occasion that the Prozac, of which she subsequently took an overdose, was prescribed. At some point she terminated (temporarily) the relationship with the father of the children, and lived for a time in a refuge in Broken Hill. 11 For a time Ms Cooper lived with Mr and Mrs Williams, members of the Salvation Army Broken Hill Corps. Also in 1998 she was reported to display "significant vegetative symptoms" and, again, significant depression was diagnosed by a psychiatrist. She moved between the William's home, a refuge, and other accommodation. 12 On 15 December 1999 Chloe was born. It was very apparent that Ms Cooper was not coping well with the care of the two children. Samantha was then twenty months old. Within three months of Chloe's birth Ms Cooper began to experience more intense auditory hallucinations. These involved voices telling her that she was not a good mother, that the children were not hers, that she should give the children away, that Chloe had never loved her, and that she should quieten the baby down. She also felt that people were able to read her thoughts. A nurse at the Broken Hill Hospital contacted the Department of Community Services, apparently expressing concern about the welfare of the family. Ms Cooper was at this time suggesting surrendering custody of her daughters, although she did not make a final decision to do so. 13 Five days after Chloe's birth, on 20 December, depression was diagnosed, this time at the Broken Hill Hospital. 14 On 23 June 2000 Ms Cooper moved with the two children from the refuge in which they had been living into a house in Broken Hill. It was the following day that Chloe died. As is now known, Ms Cooper had, during the course of the afternoon, attempted to give the baby a bottle. The baby cried loudly, and Ms Cooper could not soothe her. She therefore put her hand over the baby's mouth and nose and held it there until the child stopped breathing. 15 Ms Cooper telephoned her friend, Mr Williams, and told him that Chloe was not breathing. He told her to ring an ambulance and he drove immediately to her house. 16 Chloe was taken to the hospital but attempts to revive her failed. It may here be observed that, as the medical reports show, suffocation leaves few signs and is very difficult to establish. Chloe's death may well have been recorded as attributable as Sudden Infant Death Syndrome. 17 However, the following morning, Ms Cooper disclosed the truth to Mr Williams. She also confessed to Captain Rushbrook and his wife Mrs Rushbrook of the Salvation Army. 18 Police were notified and Ms Cooper was interviewed. That interview was electronically recorded and I have, in Chambers, viewed the recording. The interview took place over a lengthy period of time and Ms Cooper at all stages admitted that she had killed the child by putting her hand over her mouth and nose. Ms Cooper also went with police to her home and pointed out various relevant parts of the home and furnishings by way of explanation or elucidation of what she had said. That excursion also was recorded on video tape and I have viewed the recording. Two things of importance emerge with clarity from the videos. The first is Ms Cooper's obvious and genuine distress, remorse and contrition. The second is her complete frankness with police. I would add that the police officer who interviewed her exhibited the utmost compassion in doing so, for which, in my opinion he deserves commendation. It can not have been a pleasant task. 19 Ms Cooper remained in custody in Broken Hill until 6 July, when she was transferred to the Mulawa Women's Prison. There she remained until 24 August when she was granted bail and admitted to the Bloomfield Psychiatric Hospital. From 9 September until 2 November she was resident at Endeavour House. On the latter date she was discharged from there, and, so far as I can tell from the materials provided and until I was provided with further information this morning, she has been on unconditional bail and at liberty since that date. This morning, I was told that she has taken up residence with her mother in Orange but she has recently been a patient at the Bloomfield Hospital again, she has been on unconditional bail since that date. 20 Since Chloe's death Ms Cooper has undergone extensive psychiatric examination and assessment. In essence, reports of the various medical professionals who have examined her are unanimous although precise diagnoses, and some detail, vary. In my opinion, most of the variations are matters of terminology. She is significantly developmentally delayed. One psychiatrist assessed an intellectual impairment placing her in a borderline range of intelligence, and in the lowest three percent of the population in intellectual capacity. Her education is limited, and although she appears to be able to read and write in a rudimentary way, her skills in this regard are deficient. She has long suffered from depression, and this plainly intensified after the birth of each of the children. A specific diagnosis of depression was made five days after Chloe's birth. 21 One psychiatrist, Dr Roberts, recorded a significant degree of Coca Cola consumption, suggesting that this may have resulted in a level of caffeine intoxication, but this has not been confirmed. All professionals who wrote reports used similar language in describing Ms Cooper's manner and behaviour: they described her emotional condition as "blunted": one described her as "vegetative". 22 There are also suggestions, not clearly made out, of schizophrenia. However, that need not be pursued, because there is ample evidence of depression of a sufficient degree to warrant the description "psychotic". 23 Ms Cooper was nineteen years of age when Samantha was born, just over twenty-one when Chloe was born. It was well recognised among her acquaintances that she was having grave difficulty coping with her maternal obligations. She was obliged to leave the refuge where she had been accommodated and move to the Housing Commission flat in which Chloe died. This happened only the day before the death. Although there is no psychiatric evidence to that effect, the stress of moving is well known, and, indeed, there is evidence that she resisted the move and wished to stay longer at the refuge. I imply no criticism of those who manage the refuge, or of any of Ms Cooper's acquaintances, but, I am satisfied that moving into accommodation where she was the sole adult, with total care of two babies, created a stress with which she could not cope. 24 This is a tragic case. The life of a child has been lost almost before it began. That happened in circumstances where little real culpability can be attributed to the perpetrator. It happened because Ms Cooper lacked the resources - mainly emotional, but also intellectual and probably financial - to manage the family for whom she was responsible. 25 I wish to make it clear also that I do not intend to criticise the level of assistance Ms Cooper received from welfare or health authorities. It is, apparently tempting to some, to cast blame on those authorities when tragedies such as this occur. There is no evidence before me that would support such criticism. So far as the evidence before me goes, those authorities acted appropriately, but were unable to prevent the tragedy. In saying this, I am referring to the immediate circumstances before and surrounding the death. 26 During the course of submissions, Mr Maiden, who represents Ms Cooper in these proceedings, put to me that, in part, this tragedy may be attributable to changes that have been brought about in the statutory provisions for persons such as Ms Cooper. He put to me that part 9 of the former Child Welfare Act has been repealed but that if that part had still been in operation, or some equivalent had been in operation, Ms Cooper may have been entitled to continuing supervision and assistance from the Department of Community Services. I am not in any position to make an assessment of this submission but it does have at least an apparent appeal. 27 It is obvious to me that, from the age of eighteen, Ms Cooper really was in need of continuing assistance of some kind but that this, if what I was told about the statutory position is correct, could not be made available to her. If so, it is a matter that perhaps should be the subject of consideration by the legislature. 28 I am quite satisfied that the Crown is on firm ground in accepting that a custodial sentence would be quite inappropriate to meet the circumstances of this case. I am satisfied that the community's need to see justice done does not demand, and would not warrant, a custodial sentence. I accede to the Crown submission that the appropriate sentencing option is a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. It is obvious that Ms Cooper will benefit from supervision and guidance of the Probation and Parole Service and I propose to make that a condition of the bond. 29 S9 requires that a bond contain a condition to the effect that the offender will appear before the court if called upon to do so at any time during the term of the bond and that that person will be of good behaviour and will inform the registrar of the court of any change in his or her residential address. Additional conditions appropriate to the circumstances of this case may be imposed. I do propose to make a condition of supervision as well as the obligatory conditions. 30 Maryanne Jane Cooper, in accordance with s 9 of the Crimes (Sentencing Procedure) Act 1999, I make an order directing you to enter into a good behaviour bond for a period of four years. The bond is subject to the following conditions: